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Defendants-appellants Angelo Paccione, August Recycling, Inc., A & A Land Development, National Carting, Inc., Stage Carting, Inc., Anthony Vulpis and Rosedale Carting, Inc. appeal from a "Second Order of Forfeiture" entered on May 10, 1991 in the United States District Court for the Southern District of New York (Motley, J.), vesting title in the United States (the "government") to certain properties ("Subject Property") by virtue of appellants' failure to pay $22 million in accordance with a letter agreement entered into between the parties in lieu of a formal forfeiture hearing. The Subject Property specified in the Second Order of Forfeiture consisted primarily of the ownership interests of the defendants Paccione and Vulpis in the defendant corporations and the ownership interests of the defendant corporations in various subsidiaries, as well as the assets of the corporations themselves.

On this appeal, appellants contend that the district court erred when it authorized the government to take title to the Subject Property by issuing its Second Order of Forfeiture. Appellants maintain that by signing the letter agreement rather than submitting the forfeiture issue to the jury, the government could not take title to the properties upon appellants' default but, rather, should have executed on the judgment as a judgment creditor pursuant to N.Y.Civ.Prac.L. & R. § 5236 (McKinney 1978). The government contends, and the district court found, that by signing the letter agreement, the government did not waive its forfeiture rights under the statute, including the right to a substitution of assets under 18 U.S.C. § 1963(m). We disagree with the government's contention and therefore reverse.


948 F.2d 851 (1991)

UNITED STATES of America, Appellee,


Angelo PACCIONE; August Recycling, Inc.; A & A Land Development; National Carting, Inc.; Stage Carting, Inc.; Anthony Vulpis; and Rosedale Carting, Inc., Defendants-Appellants.

Nos. 2149, 2150 and 2151, Dockets 91-1325L, 91-1326 and 91-1327.

United States Court of Appeals, Second Circuit.

Argued August 12, 1991.

Decided November 4, 1991.

New York Law School location: File #1269, Box #128